The politics of child pornography: Lawmakers at odds over sentencing rules for possession offenses

The reintroduction of the PROTECT Act has lawmakers debating mandatory minimums along party lines.
Published: Apr. 22, 2022 at 9:58 AM EDT
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WASHINGTON (Gray DC) - How much time should someone convicted of possessing child pornography serve? That’s the debate lawmakers are having right now.

“You know, I’m not too concerned about the criminal,” said Sen. Josh Hawley (R-Mo.), about offenders who possess child pornography.

He’s reintroducing the PROTECT Act, which would mandate a minimum of five years in prison for those convicted of possessing child pornography. This minimum was the law until 2005, when the Supreme Court decided in Booker v. United States that the length of a minimum sentence could be left up to the judge.

“Judges shouldn’t be able to give these child porn offenders and child sex abusers slaps on the wrist,” Hawley said. “They ought to be doing serious time.”

The original PROTECT Act passed the Senate with bipartisan support in 2003. But now, Hawley has just four Senate colleagues and seven House members signed on. They’re all Republicans.

The senators cosponsoring the legislation are Sen. Ted Cruz (R-Texas), Sen. Mike Lee (R-Utah), Sen. Rick Scott (R-Fla.) and Sen. Thom Tillis (R-N.C.). In the House, Rep. Ken Buck (R-Colo.) introduced the companion bill. Rep. Elise Stefanik (R-N.Y.), Rep. Mary Miller (R-Ill.), Rep. Scott Perry (R-Pa.), Rep. Ralph Norman (R-S.C.), Rep. Bob Good (R-Va.) and Rep. Ted Budd (R-N.C.) are the cosponsors.

Sen. Dick Durbin (D-Ill.) supported the original PROTECT Act when it first became law nearly 20 years ago. Now, as Chair of the Senate Judiciary Committee, he blocked Hawley’s new bill from getting a Senate vote.

In a speech on the Senate floor, Durbin said there are valid questions about sentencing guidelines.

We followed up with Durbin, and a spokesperson sent us this statement.

“Senator Hawley’s bill, which he introduced on March 29 and attempted to pass on the Senate floor one week later, would effectively overturn a 2005 Supreme Court decision, U.S. v. Booker, with respect to a category of criminal offenses. The Booker decision, which came after the enactment of the 2003 PROTECT Act, determined that it was unconstitutional for the federal sentencing guidelines to be mandatory and rendered the guidelines advisory. As Senator Durbin said on the floor, it is not clear whether the Hawley bill passes the constitutional test of Booker. Further, we must be thoughtful about criminal reform bills, and legislation that would overturn the landmark Booker decision and create new mandatory sentences deserves more than a drive-by on the floor of the U.S. Senate.”

Spokesperson for Chair Durbin

Criminal justice advocate Kevin Ring, the president of Families Against Mandatory Minimums, calls Hawley’s bill, “an overreaction.”

“I understand the need for stiff terms for many of the people who commit these crimes,” Ring said. “The problem with this proposal, and with all mandatory minimums, is that it doesn’t allow for distinctions between more culpable or more serious offenders and less serious offenders.”

For now, the PROTECT Act isn’t going anywhere, but Hawley said he won’t stop fighting for his bill.

Multimedia Journalist Natalie Grim contributed to this report.

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